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2008 DIGILAW 1546 (PAT)

Radha Krishna Exports Pvt. Ltd. v. Pandaul Cooperative Spinning Mills Ltd.

2008-10-20

MIHIR KUMAR JHA

body2008
Judgment 1. Heard counsel for the parties. 2. In the opinion of this Court, the impugned order dated 16.8.2002 in T.S. No. 71/2000 rejecting amendment in the plaint cannot be sustained for a simple reason that certain subsequent events necessitating filing of such amendment petition had to be allowed as a matter of course specially when by such amended pleadings the plaintiff-opposite party had only intended to clarify and/or specify quantity or amount spelt out at various places in the plaint. Such amendment, in a suit of the present nature, ought to have been allowed and the Court below has committed apparent error by rejecting the amendment by holding that it could either change the nature of the suit or was impermissible in terms of amended provisions of Order VI, Rule 17 C.P.C. 3. As a matter of fact, when certain orders were passed by this Court, in favour of the petitioner only during the pendency of the suit which made it entitled to recover further quantity of materials/amounts from opposite parties that could not have been recorded unless an amendment was incorporated in the plaint. There is no denial to scope of such suit extending to the issues to recovery of due amount/materials and as such incorporation of the subsequent events taking place during the pendency of the suit could have also ensured avoidance of multiplicity of suits, which is one of the avowed object of amendment of plaint. 4. That being so, this Court could set aside impugned order dated 16.8.2002 refusing amendment in the plaint and direct the court below to permit the petitioner to carry out amendment in plaint as prayed for. 5. Coming to the next case (C.R. 1434/2001), this Court would find it difficult to sustain the impugned order dated 17.7.2001 refusing the prayer of the defendant petitioner to refer the dispute to arbitration inasmuch as, in Clause 13 of the agreement there is a clear provision for such arbitration. 6. The submission of counsel for the opposite party that only creditor of the first party and/or claimant of the first party could have sought arbitration in terms of arbitration clause has to be only noticed for its being rejected. 6. The submission of counsel for the opposite party that only creditor of the first party and/or claimant of the first party could have sought arbitration in terms of arbitration clause has to be only noticed for its being rejected. Clause 13 of the said agreement spells out arbitration clause and reads as follows:- "the creditor and/or claimant of the first party shall have no right either to stop production process in the said order to stop movement of the same materials, products, waste and left over goods and articles. In case of a dispute, if the matter is not settled at Managing Directors level, then the matter will be referred to the Industrial Development Commissioner as arbitrator." 7. A conjoint reading of the entire Clause 13 of the agreement would make it clear when ever any dispute pertaining to any aspect of the matter covered by the agreement would crop up, the same, if not settled by the Managing Director would be referred to Industrial Development Commissioner for arbitration. This becomes further clear from the other clauses of the agreement dealing with the mutual right and obligation of the Pandual Co-operative Spinning Mills Ltd., which is the first party under the Agreement and Radha Krishna Eixports Pvt. Ltd. which is the second party. It is only a dispute between the aforesaid two parties which has to be taken care of in view of the provisions in agreement and when there fore a dispute of that nature is sought to be referred to the arbitration of Industrial Development Commissioner, Bihar who is a named arbitrator, nothing more is required to be looked into for finding out the applicability of Section 89 of the Code of Civil Procedure read with the provisions of Section 11 of the Arbitration and Conciliation Act, 1996. 8. 8. That being so, this Court would set also aside the impugned order dated 17.7.2001 and would hold that in presence of the aforesaid arbitration clause naming Industrial Development Commissioner, Bihar, as the arbitrator the matter has to go to arbitrator and accordingly, the Court below is directed to refer the dispute invoved in the suit to the arbitrator i.e. Industrial Development Commissioner, Bihar who in view of the long pendency of the matter is expected to expedite the arbitration proceedings and dispose it of as early as possible preferably within a period of one year from the date of receipt/production of a copy of this order. 9. With the aforesaid observations and directions both the Civil Revision applications are allowed only to the extent indicated above. There would be however no order as to costs.